On the facts of these cases, appellants' rights to challenge any search under Article I, Section 10 of the Minnesota Constitution are coextensive with appellants' rights under the Fourth Amendment to the United States Constitution.

On remand from Minnesota v. Carter, ___ U.S. ___, 119 S. Ct. 469
(1998), the judgments of this court in State v. Carter, 569 N.W.2d 169
(Minn. 1997), and in State v. Johns, 569 N.W.2d 180 (Minn. 1997), are
vacated. The judgment of the court of appeals in State v. Carter, 545
N.W.2d 695 (Minn. App. 1996), is affirmed. The judgment of the court of appeals
in State v. Johns, No. C9-95-1765, 1996 WL 310305 (Minn. App. June 11,
1996) is affirmed on different grounds.

Considered and decided by the court en banc without oral argument.

O P I N I O N

ANDERSON, Russell A., Justice.

These cases return to us on remand from the United States Supreme Court. On
September 11, 1997, we ruled that the police violated the constitutional rights
of appellants, Wayne Thomas Carter and Melvin Johns, when an Eagan police
officer stood 12 to 18 inches from a window of an apartment and looked through a
gap in the blinds, spotting the appellants packaging cocaine in the kitchen with
a woman who was later identified as Kimberly Thompson, the sole lessee of the
apartment. We reversed the district court and the court of appeals, holding (1)
that the search of the apartment was illegal and (2) that appellants had
“standing” to challenge the search. State v. Carter, 569 N.W.2d 169, 171
(Minn. 1997) (citing Fourth Amendment to the United States Constitution and
Article I, Section 10 of the Minnesota Constitution). [1]
Three members of this court dissented, agreeing with the majority that the
search was illegal but contending that appellants did not have a legitimate
expectation of privacy under the Fourth Amendment to challenge the search of
Thompson's apartment. Id. at 179-81.

The United States Supreme Court granted review and, in a 5-4 decision
delivered by Chief Justice Rehnquist, reversed this court, holding that
appellants, as short-term business guests, did not have a legitimate expectation
of privacy to challenge any search of Thompson's apartment. Minnesota v.
Carter, ___ U.S. ___, 119 S. Ct. 469, 474 (1998). The Supreme Court
differentiated between an overnight guest who may claim Fourth Amendment
protection, see Minnesota v. Olson, 495 U.S. 91 (1990), and one who is
“merely `legitimately on the premises'” who may not. Minnesota v. Carter,
___ U.S. ___, 119 S. Ct. at 473-74 (citing Rakas v. Illinois, 439 U.S.
128 (1978)). The Supreme Court also noted that an expectation of privacy in
commercial property is less than an expectation of privacy in a home.
Minnesota v. Carter, ___ U.S. ___, 119 S. Ct. at 474 (citing New York
v. Burger, 482 U.S. 691, 700 (1987)).

The Supreme Court remanded the case to this court. Although we referenced
both the Fourth Amendment to the United States Constitution and Article I,
Section 10 of our state constitution in our prior decision of State v.
Carter, our analysis was based entirely on Supreme Court precedent
interpreting the Fourth Amendment. Accordingly, we asked the parties to brief
the issue of whether Article 1, Section 10 of the Minnesota Constitution affords
the appellants greater protection than provided by the Fourth Amendment to the
United States Constitution as interpreted by the Supreme Court. We conclude, on
the facts of this case, [2]
that appellants' rights to challenge any search under Article I, Section 10 of
the Minnesota Constitution are coextensive with appellants' rights under the
Fourth Amendment to the United States Constitution. Therefore, we now hold that
appellants do not have a legitimate expectation of privacy to challenge the
search of the apartment under the Minnesota Constitution.

We reach this conclusion for two primary reasons. First, our decision in
State v. Carter was predicated on an application of federal case law and
implicit in our decision was the understanding that, on the facts of this case,
any rights protected by the Minnesota Constitution were coextensive with the
protections of the Fourth Amendment. Second, we are not persuaded in this case
to accord greater protections under the state constitution than provided by the
federal constitution.

Article I, Section 10 of the Minnesota Constitution provides “[t]he right of
the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures shall not be violated.” This language is
identical to the search and seizure language of the Fourth Amendment to the
United States Constitution.

We have stated that a decision of the Supreme Court interpreting a provision
of the United States Constitution that is identical to a provision of the
Minnesota Constitution is “of inherently persuasive, although not necessarily
compelling, force.” State v. Fuller, 374 N.W.2d 722, 727 (Minn. 1985);
see also State v. Hamm, 423 N.W.2d 379, 382 (Minn. 1988). We may
interpret the Minnesota Constitution to afford more protection than provided
under the U.S. Constitution. See Pruneyard Shopping Center v. Robins, 447
U.S. 74, 81 (1980) (explaining that states may “adopt in [their] own
Constitution individual liberties more expansive than those conferred by the
Federal Constitution”) (citation omitted). We view with great import our role of
protecting the rights of Minnesota's citizens:

It is axiomatic that a state supreme court may interpret its own state
constitution to offer greater protection of individual rights than does the
federal constitution. Indeed, as the highest court of this state, we are “
`independently responsible for safeguarding the rights of [our] citizens.' ”
State courts are, and should be, the first line of defense for individual
liberties within the federalist system.

Fuller, 374 N.W.2d at 726 (citations omitted). We have stated,
however, that a decision to interpret the Minnesota Constitution differently
than the federal constitution should not be made “cavalierly.” Id.

On two occasions we have reached conclusions regarding Article I, Section 10
of the Minnesota Constitution that departed from decisions of the Supreme Court
interpreting the identical language of the Fourth Amendment. [3]
In so doing, we interpreted the Minnesota Constitution as according greater
protection than the Supreme Court's interpretation of the Fourth Amendment
because we viewed the Supreme Court's decisions as “radical” or “sharp”
departures from precedent. In In the Matter of the Welfare of E.D.J., we
departed from Supreme Court precedent regarding what constitutes a “seizure”
under the Minnesota Constitution, concluding that the Supreme Court's decision
in California v. Hodari, 499 U.S. 621 (1991), represented a “sharp
departure” from its previous decisions which warranted a separate, more
protective standard under the Minnesota Constitution. 502 N.W.2d 779, 780 (Minn.
1993). One year after E.D.J., we again departed from the Supreme Court,
ruling in Ascher v. Commissioner of Public Safety that the Supreme
Court's decision in Michigan Dep't of State Police v. Sitz, 496 U.S. 444
(1990), allowing the use of temporary road blocks to investigate driving under
the influence, represented a “radical” departure from the previous rule. 519
N.W.2d 183, 186 (Minn. 1994). We reiterated the long-standing requirement that
police need an objective individualized articulable suspicion of criminal
wrongdoing before making an investigative stop in Minnesota. See id. at
187.

We are not persuaded by appellants' arguments that the Supreme Court's
analysis in this case represents a radical or sharp departure from Supreme Court
precedent. The Supreme Court's decision in this case is a logical extension of
Minnesota v. Olson, which held that an overnight guest could claim the
protection of the Fourth Amendment in the home of another while a person merely
“legitimately on the premises” may not. 495 U.S. at 98.

In this case, the Supreme Court reasoned that the “purely commercial nature
of the transaction engaged in here, the relatively short period of time on the
premises, and the lack of previous connection between [appellants] and the
householder, all lead us to conclude that [appellants'] situation is closer to
that of one simply permitted on the premises.” Minnesota v. Carter, ___
U.S. ___, 119 S. Ct. at 474. [4]
Unlike our decisions in E.D.J. and Ascher, we are not convinced
that a separate rule is necessary under the Minnesota Constitution. Today's
decision is consistent with our previous decisions analyzing whether a defendant
has a legitimate expectation of privacy in the place searched. We have said on
numerous occasions that a defendant who cannot demonstrate a legitimate
expectation of privacy relating to the area searched or the item seized may not
contest the legality of the search or seizure. See, e.g., State v. Richards,
552 N.W.2d 197, 204 (Minn. 1996) (citing Rakas, 439 U.S. at 138-48);
State v. Tungland, 281 N.W.2d 646, 649 (Minn. 1979) (also citing
Rakas).

In our prior opinion in State v. Carter we relied exclusively on
United States Supreme Court precedent in interpreting the scope of Fourth
Amendment protection as applied to the facts of these cases, with the implicit
conclusion that the scope of Article I, Section 10 was coextensive in these
circumstances. On remand, confronted with the same facts, our conclusion that
the protections afforded by Article I, Section 10 of the Minnesota Constitution
should be coextensive with the protections of the Fourth Amendment to the United
States Constitution has not changed.

Therefore, in accordance with the United States Supreme Court decision in
Minnesota v. Carter, ___ U.S. ___, 119 S. Ct. 469 (1998), the judgments
of this court in State v. Carter, 569 N.W.2d 169 (Minn. 1997), and in
State v. Johns, 569 N.W.2d 180 (Minn. 1997), are hereby vacated. The
judgment of the court of appeals in State v. Carter, 545 N.W.2d 695
(Minn. App. 1996), is affirmed. The judgment of the court of appeals in State
v. Johns, No. C9-95-1765, 1996 WL 310305 (Minn. App. June 11, 1996) (holding
that search by police officer did not violate the Fourth Amendment) is affirmed
on different grounds consistent with this opinion.

Affirmed.

A P P E N D I X

The following facts were recited in our opinion in State v. Carter,
569 N.W.2d 169, 171-73 (Minn. 1997):

“At approximately 8 p.m. on the evening of May 15, 1994, an anonymous
informant approached Eagan police officer Jim Thielen. The informant, whom
Thielen never had seen before, told Thielen that he/she had walked by apartment
103 at 3943 South Valley View Drive and observed people sitting around a table
inside the apartment `bagging' a white powder. The informant also told Thielen
that he/she believed the occupants of the apartment had used a blue four-door
Cadillac located in the parking lot adjacent to the apartment complex. The
informant also told Thielen that the car had an Illinois license plate that read
SGD 896. In response to this information, Thielen went to the complex and
approached the ground floor window of apartment 103. Thielen then walked toward
the window of the apartment by leaving the common sidewalk that led to the
apartment building's entrance and stepping on a grassy common area closer to the
window. Thielen then walked behind some short bushes located in front of the
apartment window and stood approximately 12 to 18 inches from the window. The
window's blinds were drawn closed, but gaps in the blinds allowed Thielen to
observe activity in the apartment. While looking through the gaps in the blinds,
Thielen observed two males and one female sitting at a kitchen table. One of the
males appeared to be placing a white powdery substance onto the kitchen table.
This person then would pass the white substance to the second male who then
would place the powder into a plastic bag. The second male, who was wearing
bedroom slippers, would in turn give the plastic bag to the female who would cut
off the ends of the bag and place it on the table.

“After observing this activity for approximately 15 minutes, Thielen left the
apartment complex and went to a nearby fire station where he had another
conversation with the informant and another Eagan police officer. At this time
the informant told the officers that the people inside the apartment might be in
possession of a gun. Thielen then returned to the apartment complex where he
located a Cadillac matching the description given by the informant. He then
returned to the fire station, telephoned Officer Kevin Kallestad of the South
Metro Drug Task Force, and reported what he had seen. Kallestad instructed
Thielen to stop and secure the suspect vehicle should anyone attempt to drive it
away. Police also began to prepare affidavits as part of a request for warrants
to search both the apartment and the Cadillac.

“At approximately 10:30 p.m., an Eagan police officer observed two males
putting items into the suspect Cadillac. The two males then entered the vehicle
and started to drive it out of the parking lot. As per instructions, Eagan
police stopped the vehicle at the intersection of Rahn Road and Beau de Rue
Drive. The police found Carter in the driver's seat and Melvin Johns in the
passenger's seat. The police ordered both men out of the car. As the police
opened the door to let Johns out of the car, they observed a black zippered
pouch and a handgun, later determined to be loaded, on the floor of the vehicle.
The police then placed Carter and Johns under arrest. The police subsequently
towed the Cadillac to the Eagan Police Department, and after receiving the
signed search warrant at approximately 1:30 a.m. on May 16, the police searched
the vehicle. When the officers opened the black zippered pouch, they discovered
a white mixture in plastic baggies, Johns' identification, pagers, and a scale.
Tests later determined that the white mixture was 47.1 grams of cocaine.

“Late in the evening of May 15, after the arrests of Carter and Johns, Eagan
police returned to apartment 103 and arrested its occupant, Kimberly Thompson.
At approximately 3 a.m. on May 16, police executed a search warrant on the
apartment and located cocaine residue on the kitchen table and plastic baggies
consistent with those found in the automobile driven by Carter. Thielen
subsequently identified Carter, Johns and Thompson as the individuals he had
observed in the apartment packaging the white mixture. He identified Carter as
the individual he had seen putting the white mixture on the table and dividing
it into piles, Johns as the man who wore slippers and placed the piles into
baggies, and Thompson as the individual who cut the ends off the baggies and
placed the baggies in piles. Police ultimately learned that Carter and Johns
were residents of Chicago, Illinois, and that Thompson was the sole lessee of
apartment 103. Subsequent to his arrest, Carter made a statement to the police
in which he admitted ownership of a duffel bag found inside the Cadillac. A
search of the duffel bag uncovered a digital gram scale containing traces and
residue of cocaine. Johns made a statement to the police admitting he had
accepted a proposal to transport cocaine from Illinois to Minnesota for money,
and that he, Carter, and Thompson had packaged the cocaine at Thompson's
apartment. He also admitted that there were approximately two ounces of crack
cocaine and a handgun in the vehicle.”

D I S S E N T

PAGE, Justice (dissenting).

I respectfully dissent. On remand from the United States Supreme Court, the
court now holds that Carter and Johns did not have a reasonable expectation of
privacy under the Minnesota Constitution to challenge the search of the
apartment. Surely their presence in an apartment with the blinds drawn and the
windows and doors closed gave them an expectation of privacy that was
reasonable. I would therefore hold that they did have such an expectation. The
justification for the court's opinion is that the language of Article I, Section
10 of the Minnesota Constitution is identical to the search and seizure language
of the Fourth Amendment of the United States Constitution under which the
Supreme Court, in a 5-4 decision, concluded that Carter and Johns had no
reasonable expectation of privacy. However, “[w]hether the state constitution
has language similar to that of the federal Constitution or not, states are free
to interpret their own constitutions” to provide greater protection for
individual rights than minimally provided by the federal Constitution.
Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 836 (Minn. 1991)
(citing State v. Fuller, 374 N.W.2d 722, 726 (Minn. 1985)); see also
Pruneyard Shopping Center v. Robins, 447 U.S. 74, 81 (1980). Based on the
facts of this case, I see no reason why we should not afford the citizens of
Minnesota greater protection from governmental intrusion than currently afforded
by the federal constitution.

While the Supreme Court has set forth an albeit different rule regarding an
individual's reasonable expectation of privacy, the Court has not necessarily
set forth the better rule. The Supreme Court's limit on Carter and Johns'
expectation of privacy as adopted by our court appears to turn on the fact that
they were engaged in an illegal commercial activity. If we similarly base
our jurisprudence regarding the expectation of privacy wholly on the type of
conduct involved, then we will inevitably limit the meaning of the search and
seizure provision of our constitution to provide protection only for those
engaging in activities we find acceptable. I do not believe an individual's
reasonable expectation of privacy is so narrow. See Friedman, 473 N.W.2d
at 830 (stating that “states have been particularly attentive to the protection
of those citizens accused of crimes”). Where it is a close question of whether
an individual's expectation of privacy is reasonable, as evidenced by the narrow
5-4 majority, there is no compelling reason to blindly follow the Supreme
Court's lead to provide less protection for Minnesota citizens. The Supreme
Court recognized the broader reach of the protection against unreasonable
searches and seizures even in a “commercial” setting in Katz v. United
States, 389 U.S. 347 (1967) (involving a defendant who was convicted of
transmitting wagering information by telephone across state lines). In
concluding that the government's eavesdropping activities violated the
petitioner's reasonable expectation of privacy, the Court stated that “what [an
individual] seeks to preserve as private, even in an area accessible to the
public, may be constitutionally protected.” Id. at 351-52. We should
extend that protection here.

If I am incorrect and it is not the illegal nature of the conduct that drives
today's decision, then every Minnesotan has lost their reasonable expectation of
privacy because the limits placed on the reasonableness of one's expectation of
privacy that the court announces today represents the maximum level of
protection that Minnesota citizens can expect. Minnesota citizens visiting
another person's home for whatever purpose will be surprised to learn that under
our law they no longer have a expectation of privacy in that home. Our citizens
deserve more.

S P E C I A L C O N C U R R E N C E

ANDERSON, Paul H., J. (concurring specially).

I concur in the result reached by the majority to the limited extent that the
holding of the United States Supreme Court in Minnesota v. Carter, ___
U.S. ___, 119 S. Ct. 469 (1998), mandates a holding by our court that, under the
specific facts of this case, Carter and Johns did not have an expectation of
privacy under either the Fourth Amendment to the United States Constitution or
Article 1, Section 10 of the Minnesota Constitution.

Footnotes

[1] Johns' conviction was reversed in State v.
Johns, 569 N.W.2d 180 (Minn. 1997) (reversing conviction based on the
reasoning set forth in State v. Carter, 569 N.W.2d 169 (Minn. 1997)).
Johns' conviction had been affirmed by the court of appeals in an unpublished
opinion holding that the search by the police officer did not violate the Fourth
Amendment. See State v. Johns, No. C9-95-1765, 1996 WL 310305 (Minn. App.
June 11, 1996). The majority and dissent in our prior decision in State v.
Carter unanimously agreed that the officer's conduct violated the Fourth
Amendment. 569 N.W.2d at 178-79. For the reasons stated in this opinion, the
decision of the court of appeals in State v. Johns is affirmed on
different grounds.

[2] The salient facts concerning the search at issue
were set out in State v. Carter, 569 N.W.2d 169 (Minn. 1997), and
reproduced as an appendix to this opinion.

[3] We recently declined to extend additional
protection under the Minnesota Constitution in a case dealing with an illegal
seizure. See State v. Harris, 590 N.W.2d 90 (Minn. 1999); see also
State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995) (citing both In the
Matter of the Welfare of E.D.J., 502 N.W.2d 779 (Minn. 1993)and
Ascher v. Commissioner of Public Safety, 519 N.W.2d 183 (Minn. 1994) in
holding that defendant was seized “within the meaning of Article 1, Section 10”
of the Minnesota Constitution while not mentioning the Fourth Amendment to the
United States Constitution).

[4] Justice Kennedy, concurring in Minnesota v.
Carter, described the nature of appellants visit to the apartment,
observing:In this case [appellants] have established nothing more than a
fleeting and insubstantial connection with Thompson's home. For all that appears
in the record, [appellants] used Thompson's house simply as a convenient
processing station, their purpose involving nothing more than the mechanical act
of chopping and packaging a substance for distribution. There is no suggestion
that [appellants] engaged in confidential communications with Thompson about
their transaction. [Appellants] had not been to Thompson's apartment before, and
they left it even before their arrest.___ U.S. ___, 119 S. Ct. 469, 479 (1998)
(Kennedy, J., concurring).